Filed 8/24/26 San Diego Unified Port Dist. v. Superior Court CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SAN DIEGO UNIFIED PORT D087218
DISTRICT,
Petitioner,
(San Diego County
v. Super. Ct. No. 37-2024-00010750-
CU-MC-CTL)
THE SUPERIOR COURT OF
SAN DIEGO COUNTY,
Respondent;
ARTURO CASTAÑARES,
Real Party in Interest.
ORIGINAL PROCEEDING on a petition for writ of mandate after the
superior court ordered disclosure of purportedly attorney-client privileged
documents. Joel R. Wohlfeil, Judge. Petition granted.
San Diego Unified Port District Office of the General Counsel,
Thomas A. Russell and Simon Kann; Kronick, Moskovitz, Tiedemann &
Girard, Mona G. Ebrahimi and William T. Chisum for Petitioner.
Womble Bond Dickinson and Mark L. Tuft for The Association of
Workplace Investigators, Inc.; California Special Districts Association; The
League of California Cities; The California State Association of Counties;
Oppenheimer Investigations Group; PRISM; and Van Dermyden Makus Law
Corporation as Amicus Curiae on behalf of Petitioner.
Briggs Law Corporation and Cory J. Briggs for Real Party in Interest.
No appearance for Respondent.
Journalist Arturo Castañares sought certain records from the
San Diego Unified Port District under the California Public Records Act
(Gov. Code, § 7920.000 et seq.). The District refused to produce the records,
claiming, among other protections, the documents—a Confidential Memo and
a Confidential Summary Report—were attorney-client privileged.
Castañares sued to compel disclosure of the responsive materials. Everyone
agrees the Confidential Memo and Confidential Summary Report are
privileged. But the trial court, after ordering the District to identify any
attachments to the documents in an amended privilege log, ultimately
compelled the District to produce certain attachments to those privileged
documents.
We conclude this was error. Because the identity of the attachments to
a privileged communication can reveal privileged information, the trial court
erred in requiring the District to identify the attachments in its amended
privilege logs.1 Accordingly, the court also erred in directing the District to
produce any of the attachments. We therefore grant the District’s petition.
1 As the parties did not rely on or brief Evidence Code section 919, we
instead address the arguments they did raise.
2
We emphasize the privilege in this case is contextual. The standalone
attachments are not as a result imbued with privilege in all contexts and may
be discoverable by other means in other contexts.
I.
In 2023, the District placed its CEO, Joe Stuyvesant, on administrative
leave. He later resigned.
In February 2024, under the CPRA, Castañares sought copies of “any
and all investigations, inquiries, and other reports concerning complaints
against or otherwise pertaining to the job performance of [Stuyvesant]
conducted since January 1, 2023.” The District claimed any responsive
records were exempt from disclosure under the CPRA’s personnel, privilege,
and catch-all exemptions. Castañares filed the instant lawsuit seeking to
compel disclosure of the responsive records.
In opposition, the District filed a declaration from Simon Kann, an
assistant general counsel, with a privilege log disclosing two responsive
records. They were a “Confidential memorandum from outside counsel
providing advice and analysis regarding personnel investigation” and a
“Confidential summary report” with the same description, each sent from
Elizabeth Dunn to Ellen Gross, described as “the [District]’s counsel.” A
subsequent declaration from Dunn makes clear she also hand-delivered hard
copies of both documents to her client, the District. The District separately
retained Dunn and Gross as outside counsel “for the purpose of providing
legal services and advice related to the investigation.” The District withheld
these two records under attorney-client privilege, attorney work product, and
the CPRA personnel and catch-all exemptions.
On June 9, 2025, the trial court tentatively ruled the records were
privileged. At the initial bench trial date on June 12, the District declined to
3
make the documents available for in camera review, a position it has
maintained. The court took the matter under submission.
On June 17, the trial court entered an order finding the privilege log
“insufficient” and requiring the District to provide an amended log that
“describe[d], with specificity, each document which the Confidential
memorandum and Confidential summary report consists of,” including “each
attachment or exhibit, if any,” before it made a “final decision.”
The District filed a mandate petition, arguing the attachments were
attorney-client privileged and protected by the work-product doctrine and the
privilege extended to a privilege log. We denied the petition.
In July, the District filed its amended privilege log. The Confidential
Memo had no attachments, and the Confidential Summary Report had 103.
An introductory section of the log stated each document was protected from
disclosure by attorney client privilege, work product, and the personnel
exemption “by virtue of . . . inclusion by outside counsel.”
Attachments number 1 through 78 were “documents selected” by Dunn
and had general descriptions like “[District] Board Policy.” A column listed
specific withholding grounds. Only some attachments were marked as
attorney-client privileged and attorney work product. Other grounds
included personnel records, “[n]ot responsive” (i.e., pre-2023 documents), and
Government Code sections 54963 (closed session; labor negotiations) and
7923.600 (security).
Attachments number 79 through 103 were summaries of interviews of
unidentified witnesses conducted by Dunn, which the District contended
“would disclose [Dunn]’s thoughts and impressions.”
The District also provided declarations. Dunn said she incorporated
the documents and interview summaries into the Confidential Summary
4
Report to “explain and support [her] legal analysis and the strategy.” Kann
said the “records identified in the [amended privilege log] contain the entirety
of the records that are responsive to the Request.”
The court held a continued trial day on September 11. It concluded the
District had made a prima facie showing of attorney-client privilege and
Dunn’s absolute work product was protected, but it “question[ed] whether
statement[s] of fact[] communicated during the interviews by the persons
interviewed by Ms. Dunn are protected by either the privilege or the
doctrine.” To the extent the materials were “protected [as] qualified work
product,” however, the court “err[ed], if at all, on the side of directing the
production of those materials because of the public policy” behind the CPRA.
The court ruled the District had to produce attachments number 1
through 15, 22 through 25, 27 through 36, 39 through 66, 68 through 73, and
75 through 78. The listed attachments were those without individual
attorney-client privilege or attorney work product designations. Thirty of the
sixty-seven attachments ordered produced predated 2023 or were undated.
The court also ordered the District to “augment” its amended privilege log “to
include the name of each interviewee whose interview is referenced in items
79-103 of the [amended privilege log], the date of each such interview, and
the name of any and all persons other than the interviewee who was
present.”
On October 1, the District filed its second amended privilege log, which
showed the Stuyvesant interview summary was attachment number 88 and
no third parties were present during his interview.
On October 23, the trial court held the final trial day. It first addressed
Dunn’s summary of her interview with Stuyvesant. Because Stuyvesant was
placed on leave in July 2023—before Dunn’s August 2023 interview—the
5
court “d[id] not consider there to have been an attorney-client relationship”
between Dunn and Stuyvesant during the interview. The court did not
address whether the interview summary was protected by the attorney-client
privilege as between Dunn and the District. The court considered the work
product claim “nuanced,” as Dunn’s interview summary “may in part . . . be
absolutely protected,” but stated it would “be surprised if it doesn’t, in part,
reflect upon information that was provided by [Stuyvesant], which is
protected, if at all, by a qualified privilege.” The court then expressed its
view of the CPRA as “the tiebreaker” because it “puts a tremendous weight
on public transparency. If this were two private litigants, I think we might
be talking about a different conclusion. But if . . . there’s . . . qualified [work
product], I would be inclined to direct that the [work product doctrine,] in
balancing, would yield to the public’s right to the information.” The court
accordingly ruled the District’s counsel had to “redact all information”
reflecting “Dunn’s impressions that are protected by the absolute work
product doctrine” and to produce the redacted summary.
On the allegedly nonresponsive attachments, Castañares’ counsel
argued “[t]hey’re within the scope of the request because they’re attached to
the very investigation that is the subject of the request.” The trial court
noted Kann’s declaration that the identified documents “ ‘constitute the
entirety of the records responsive to [the] CPRA request’ ” and concluded
“So[,] though probably not within the scope, . . . Kann injected it within the
scope.” The District’s counsel then asked if the court was “making a ruling on
the independent exemptions,” citing the attachments previously ordered
disclosed. The court responded, “I’m confirming the ruling. . . . Whether it be
objections or exemptions, the Court is overruling the [District]’s position as to
those materials only.”
6
On November 12, the court issued a written order requiring production
of the previously identified attachments and the redacted Stuyvesant
interview summary.
The District filed the instant petition, seeking an immediate stay and
to vacate the order. After issuing a temporary stay and requesting an
informal response, we summarily denied the petition.
The District then filed a petition for review in the Supreme Court. The
high court granted the petition and transferred the matter back to us “with
directions to vacate [our] order denying mandate and to issue an order
directing respondent superior court to show cause why the relief sought in
the petition should not be granted.” The Supreme Court stayed the trial
court’s order “pending further order of” this court. We issued the show-cause
order and sought supplemental briefing from the parties on certain issues
pertaining to the attorney-client privilege.
II.
A.
The CPRA requires government records to be “open to inspection”
“except as otherwise provided.” (Gov. Code, § 7922.525, subd. (a).) Materials
exempt from disclosure under the CPRA include “records protected by the
attorney-client privilege or attorney work product doctrine.” (League of
California Cities v. Superior Court (2015) 241 Cal.App.4th 976, 986 (League
of California Cities); accord § 7927.705.) The CPRA’s “exemptions are
narrowly construed,” and the “agency opposing disclosure bears the burden of
proving an exemption applies.” (Becerra v. Superior Court (2020)
44 Cal.App.5th 897, 914.) “[D]oubtful cases must always be resolved in favor
of disclosure.” (Essick v. County of Sonoma (2022) 81 Cal.App.5th 941, 950.)
The agency must disclose any “reasonably segregable portion of a record . . .
7
after deletion of the portions that are exempted by law.” (§ 7922.525,
subd. (b).) But “public agencies are not required to attempt selective
disclosure of records that are not ‘reasonably segregable.’ ” (Los Angeles
County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 292
(Los Angeles County Bd. of Supervisors).)
An order directing disclosure under the CPRA is reviewable only by
writ petition. (§ 7923.500.) We “independently review the trial court’s
rulings on questions arising under the [CPRA] and will uphold the trial
court’s factual determinations if supported by substantial evidence.” (League
of California Cities, supra, 241 Cal.App.4th at p. 987.)
B.
The District argues the court erred in compelling disclosure of certain
documents attached to the Confidential Summary Report because the
attorney-client privilege applies to all attachments and exhibits to an
attorney-client privileged communication. Because “attachments to a
privileged communication are themselves a communicative act in furtherance
of the attorney-client relationship,” the District claims “[d]isclosure of that
information necessarily reveals the nature of the communication that was
shared between the attorney and the client and is therefore a violation of the
underlying privilege.”
Castañares concedes the Confidential Memo and Confidential
Summary Report are privileged. But he counters that preexisting documents
attached to the Confidential Summary Report are not privileged given they
existed prior to and independently of the District’s investigation. His briefing
does not directly address why the Stuyvesant interview summary is not
privileged, presumably due to the trial court’s focus on the attorney work
product doctrine.
8
As we discuss below, the privilege attaches to the entirety of the
Confidential Summary Report because the “fact of transmission . . . merits
protection.” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725,
741 (Costco).) Therefore, the court erred in its June 17, 2025 order requiring
the District to amend its log to identify each attachment to the Confidential
Summary Report. From this error, it necessarily follows that the November
12 order, directing the disclosure of some of those specified attachments, was
error as well. Such documents should not be produced under the November
12 order, although we note they “might be discoverable by some other
means.” (Costco, at p. 740.)
1.
A client “has a privilege to refuse to disclose . . . a confidential
communication between client and lawyer.” (Evid. Code, § 954.) A
“ ‘confidential communication between client and lawyer’ means information
transmitted between a client and [the client’s] lawyer in the course of that
relationship and in confidence by a means which, so far as the client is aware,
discloses the information to no third persons . . . , and includes a legal opinion
formed and the advice given by the lawyer in the course of that relationship.”
(Evid. Code, § 952.)
“The party claiming the privilege has the burden of establishing the[se]
preliminary facts.” (Costco, supra, 47 Cal.4th at p. 733.) If it does so, “the
communication is presumed to have been made in confidence and the
opponent of the claim of privilege has the burden of proof to establish the
communication was not confidential or that the privilege does not for other
reasons apply.” (Ibid.) “[T]he relevant inquiry is not the content of the
communication but is instead the relationship of the communicators.” (Clark
v. Superior Court (2011) 196 Cal.App.4th 37, 52.) The court “may not require
9
disclosure of information claimed to be privileged . . . in order to rule on the
claim of privilege.” (Evid. Code, § 915.) “If the trial court determine[s] the
communications were made during the course of an attorney-client
relationship, the communications, including any reports of factual material,
would be privileged, even though the factual material might be discoverable
by some other means.” (Costco, at p. 740.)
“[T]he fundamental purpose behind the privilege is to safeguard the
confidential relationship between clients and their attorneys so as to promote
full and open discussion of the facts and tactics surrounding individual legal
matters.” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599.)
“Nevertheless, the privilege is strictly construed because it suppresses
relevant facts which may be necessary for a just decision.” (National Steel
Products Co. v. Superior Court (1985) 164 Cal.App.3d 476, 483 (National
Steel Products Co.).)
2.
The court erred in ordering disclosure of certain attachments to the
attorney-client privileged Confidential Summary Report. On the record
before us, the documents were exempt from disclosure in this context because
revealing their identity risked disclosing attorney-client privileged
information. That does not mean, however, that the standalone documents
comprising the attachments are individually privileged, and therefore exempt
from disclosure, in other contexts.
We agree with the District that it made a prima facie showing of an
attorney-client relationship by submitting evidence that it hired outside
counsel for the purpose of providing legal advice regarding its investigation of
Stuyvesant. Dunn attested that the documents in question were transmitted
in confidence during the course of that relationship. She also attested that
10
she identified and incorporated attachments number 1 through 78 “based
upon [her] mental impressions and legal opinions to explain and support
[her] legal analysis and the strategy [she] developed to conduct the
investigation as contained within the [Confidential] Summary Report.” She
prepared the “[a]ttorney notes and summar[ies] of oral interview[s]” and
incorporated them into the Confidential Summary Report as attachments
number 79 through 103 “to help explain and support [her] legal analysis and
strategy.” She described these attachments as “key components of [her]
[Confidential] Summary Report regardless of whether they were prepared
prior to or contemporaneously with [her] [Confidential] Summary Report.” In
sum, “[t]he Confidential Memorandum and [Confidential] Summary Report,
including the attachments, reflect the results of [her] investigation and legal
advice and conclusions provided to the [District] and also [her] own
impressions, conclusions[,] and legal research.”
This substantial evidence supports the trial court’s factual finding that
an attorney-client relationship existed between the District and its
investigating attorney, Dunn. (Shen v. Miller (2012) 212 Cal.App.4th 48, 57.)
Accordingly, the burden shifted to Castañares to show the privilege is
inapplicable. (League of California Cities, supra, 241 Cal.App.4th at p. 989.)
Castañares failed to carry this burden. He claims the burden never
shifted to him “because the CPRA expressly requires the District to prove
that the privilege renders each attached ‘record in question’ exempt.”
(Quoting Gov. Code, § 7922.000.) He also points to Proposition 59, adopted in
2004, to argue that the privilege should be narrowly construed to minimize
the extent to which it limits the public’s right of access. But Castañares has
not convinced us that the way this privilege is proven as to records subject to
disclosure under the CPRA is any different from the way it is proven more
11
generally. The attorney-client privilege is already “strictly construed.”
(National Steel Products Co., supra, 164 Cal.App.3d at p. 483.) And as
Castañares recognizes, “ ‘[t]he privileges set out in the Evidence Code are
legislative creations; the courts of this state have no power to expand them or
to recognize implied exceptions.’ ” (Quoting Wells Fargo Bank v. Superior
Court (2000) 22 Cal.4th 201, 206; bolding and italics omitted and added.) The
CPRA does not purport to abrogate the usual evidentiary rules governing the
attorney-client privilege. Thus, when the District established the privilege
presumptively applied, Castañares had to prove otherwise.
Castañares did not do so. He claims the amended privilege log proves
the attachments ordered produced were not privileged because the District
does not assert the privilege as to those documents. The trial court should
not have ordered the District to produce an amended privilege log identifying
any attachments to the Confidential Memo and Confidential Summary
Report in the first place, so this information should never have been made
available to Castañares. But, even on the merits, this argument ignores the
introductory section of the privilege log, in which the District asserts the
privilege as to every attachment “by virtue of its inclusion by outside counsel
in the exempt [Confidential] Summary Report.” Castañares further argues
documents preexisting the hiring of outside counsel “cannot have been
attorney-client creations that are subject to any privilege.” Yet the privilege
protects attorney-client communications, not attorney-client creations. The
only authority on which Castañares relies to claim that the privilege cannot
apply to a preexisting document, Los Angeles County Bd. of Supervisors, is
inapt, as we later explain.
Finally, Castañares relies on the District’s verified special
interrogatory responses, in which it states “ ‘some of the requested personnel
12
records are also protected under the attorney-client and work-product
privileges,’ ” as an admission that not all the records are privileged. (Italics
and bolding omitted.) But as the District noted in its preliminary statement
to those very responses, it had not yet completed discovery and trial
preparation, which could “provide the basis for new factual conclusions and
legal contentions, all of which may lead to substantial additions to, changes
in, and variations from the contentions set forth below.” The District later
amended its interrogatory responses to assert this privilege as to all
requested documents. The court overruled Castañares’ objections to the
amended interrogatory responses. Because Castañares fails to point to
competent record evidence proving the attachments were not privileged, we
conclude the District carried its burden to prove they were privileged.
Accordingly, the court erred in ordering disclosure.
Citing Costco, Los Angeles County Bd. of Supervisors, and Travelers
Ins. Companies v. Superior Court (1983) 143 Cal.App.3d 436, Castañares
claims the documents preexisting the investigation are “not subject to the
privilege” because “the dominant purpose of . . . those attachments was
something other than transmission of information to the investigator.” Yet
this argument is a nonstarter, as the documents in question were not being
transmitted to the investigator as part of a data dump from her client but
rather from the investigator to both her fellow outside counsel and the
District in relation to the legal analysis she was hired to perform.
In Los Angeles County Bd. of Supervisors, our high court addressed the
extent to which an attorney’s billing invoices may be exempt from disclosure
under the CPRA due to the attorney-client privilege. (Los Angeles County Bd.
of Supervisors, supra, 2 Cal.5th at p. 288.) The party seeking disclosure
argued that attorney invoices are not privileged because they “further a
13
separate business purpose”—to “secure payment for services rendered”—
“that is merely incidental to the attorney-client relationship.” (Id. at p. 293.)
The high court “agree[d]—but only up to a point.” (Ibid.) It noted “the
heartland of the privilege protects those communications that bear some
relationship to the attorney’s provision of legal consultation,” so the privilege
“only protects communications between attorney and client made for the
purpose of seeking or delivering the attorney’s legal advice or
representation.” (Ibid.)
Our Supreme Court explained that whether the attorney-client
privilege applies depends on “the link between the content of the
communication and the types of communication that the attorney-client
privilege was designed to keep confidential.” (Los Angeles County Bd. of
Supervisors, supra, 2 Cal.5th at pp. 295, 297.) “[T]he privilege turns on
whether [the information] reveal[s] anything about legal consultation.” (Id.
at p. 298.) As a result, “the information contained within certain invoices
may be within the scope of the privilege.” (Id. at p. 297.) “And even if the
information is more general, such as aggregate figures describing the total
amount spent on continuing litigation during a given quarter or year, it may
come close enough to this heartland to threaten the confidentiality of
information directly relevant to the attorney’s distinctive professional role.”
(Ibid.) On the other hand, “[a]sking an agency to disclose the cumulative
amount it spent on long-concluded litigation—with no ongoing litigation to
shed light on the context from which such records are arising—may
communicate little or nothing about the substance of legal consultation.” (Id.
at p. 298.)
If information contained within certain billing records can convey
privileged information about strategy and the substance of the legal
14
consultation, the substantive documents an attorney elects to incorporate as
part of a privileged communication providing legal analysis of an
investigation are entitled to at least the same level of protection. That the
information may be nonprivileged and discoverable in other contexts does not
mean it is unprotected within the context of an attorney-client
communication. (Costco, supra, 47 Cal.4th at p. 740.) For example,
Castañares could submit CPRA requests seeking District policies and
procedures, which may be subject to disclosure in that context, divorced from
the transmittal of the privileged Confidential Summary Report. Here,
however, even the identity of the particular policies attached to the
Confidential Summary Report may reveal significant information about the
investigating attorney’s focus and her strategy in approaching the
investigation; the court therefore erred in ordering the District to provide a
more particularized privilege log identifying the individual attachments.
Those attachments are fully protected from disclosure in this context.
CBS, Inc. v. Block (1986) 42 Cal.3d 646, 653, on which Castañares
relies for the principle that “[t]he fact that parts of a requested document fall
within the terms of an exemption does not justify withholding the entire
document,” is an inapt comparison because it did not deal with the attorney-
client privilege but rather the CPRA’s catch-all exemption. There may be
instances—as with the Los Angeles County Bd. of Supervisors’ invoices—in
which redacting privileged information will adequately protect the attorney-
client relationship. But such is not the case here, where the very identity,
much less the content, of the documents subject to disclosure may reveal
privileged information about the investigation. In this context, redaction is
not an option. As previously noted, “public agencies are not required to
15
attempt selective disclosure of records that are not ‘reasonably segregable.’ ”
(Los Angeles County Bd. of Supervisors, supra, 2 Cal.5th at p. 292.)
That the District has previously disclosed “confidential investigations
and the attachments thereto when high-level officials are involved” has no
bearing on whether the District can be compelled to produce documents it has
claimed and established are subject to the attorney-client privilege in this
matter. Castañares neither asserts nor proves any waiver of the attorney-
client privilege here based on the District’s prior voluntary disclosure of
unrelated investigation results.
Finally, Castañares cites Laguna Beach County Water Dist. v. Superior
Court (2004) 124 Cal.App.4th 1453, 1458, for the proposition that
“ ‘[d]ocuments that are not originally protected do not become so merely by
being provided to or transmitted by an attorney.’ ” But the mere fact of
transmittal from the District’s attorney to the District is not the basis for the
privilege here. Instead, any attachments to the Confidential Summary
Report are privileged because their identity and contents would reveal
privileged information about the investigation, and the court cannot require
disclosure of the documents to make an independent assessment of whether
that is so. Thus, to effectuate the purpose of the attorney-client privilege, the
entirety of the privileged Confidential Summary Report, including the
existence and identity of any attachments included with it, is privileged in
this context. This does not mean that all attachments are independently
privileged as standalone documents in perpetuity. They may be discoverable
in contexts divorced from the attorney-client privileged Confidential
Summary Report.
In sum, the District has shown it is entitled to writ relief. The District
made a prima facie showing the entire Confidential Summary Report is
16
protected by the attorney-client privilege, and Castañares failed to rebut that
showing. The trial court accordingly erred in ordering the District to
(1) identify any attachments to the Confidential Summary Report and
(2) produce any of those attachments. Because we conclude the documents
were exempt from disclosure due to the attorney-client privilege in this
context, we do not need to address alternative bases for their withholding.
III.
Let a peremptory writ of mandate issue directing the superior court to
(1) set aside and vacate its order of November 12, 2025 granting Castañares’
request to compel production of documents and (2) conduct further
proceedings consistent with this opinion. San Diego Unified Port District is
entitled to recover its costs in this proceeding. (Cal. Rules of Court,
rule 8.493(a)(1)(A).)
CASTILLO, J.
I CONCUR:
KELETY, J.
17
Do, J., Concurring.
I agree the San Diego Unified Port District (District) is entitled to relief
on its petition for extraordinary writ and we must vacate the trial court’s
order requiring production of allegedly privileged attorney-client and work
product documents. I write separately because, in my view, the result is
compelled by Evidence Code section 919, a matter fairly encompassed within
the scope of the issues proposed and briefed by the parties. (Gov. Code,
§ 68081.)1
I.
Evidence Code section 919 provides that “[e]vidence of a statement or
other disclosure of privileged information is inadmissible against a holder of
the privilege” if “[a] person authorized to claim the privilege claimed it but
nevertheless disclosure erroneously was required to be made.” (§ 919,
subd. (a)(1), italics added.) And “[i]f a person authorized to claim the
privilege claimed it, whether in the same or a prior proceeding, but
nevertheless disclosure erroneously was required by the presiding officer to
be made, neither the failure to refuse to disclose nor the failure to seek
review of the order of the presiding officer requiring disclosure indicates
consent to the disclosure or constitutes a waiver and, under these
circumstances, the disclosure is one made under coercion.” (§ 919, subd. (b),
italics added.) “The protection afforded by [s]ection 919 . . . applies where a
claim of privilege is made at an earlier stage in the same proceeding and the
presiding officer erroneously overruled the claim and ordered disclosure of
1 Additionally, as the majority notes, our review of the trial court’s
rulings on questions arising under the California Public Records Act (CPRA)
is de novo. (Maj. opn., at p. 8, citing League of California Cities v. Superior
Court (2015) 241 Cal.App.4th 976, 987.)
the privilege to be made.” (11 Cal.L.Rev.Comm. Reports 1163 (1974), italics
added.)
II.
Arturo Castañares sought disclosure by the District under the CPRA of
“any and all investigations, inquiries, and other reports concerning
complaints against or otherwise pertaining to the job performance of [the
District’s former CEO, Joe Stuyvesant] conducted since January 1, 2023.”
The District responded by claiming that “any and all responsive records”
were exempt from disclosure “given the specific facts and circumstances in
this particular case.” Castañares sued the District to compel disclosure of
documents he suspected had been improperly withheld.
During discovery, the District provided Castañares with a privilege log.
The log identified two documents as responsive to the CPRA request, a
“Confidential Memorandum” and a “Confidential Summary Report.” The
District asserted that both documents were exempt from disclosure under the
CPRA. Among other asserted exemptions, the District claimed the
documents were attorney work product and attorney-client privileged
communications. At issue here is the Confidential Summary Report.
Castañares concedes that the report itself is an attorney-client privileged
communication from the District’s counsel to the District.
It is unclear how Castañares and the trial court learned that the
Confidential Summary Report had attachments that consisted of documents
that had been independently prepared before the report was drafted. But
once the court learned the report had attachments, it issued three orders
directing the District to disclose an increasing amount of information about
the attached documents.
2
The first order directed the District to “describe, with specificity, each
document which the . . . Confidential [S]ummary [R]eport consists of. For
example, [the District] is directed [to] identify each attachment or exhibit, if
any, to the . . . report.” The District objected and filed a petition for writ of
mandate seeking reversal of the order on the ground that it required
disclosure of information protected by the attorney-client privilege and work-
product doctrine. This court summarily denied the petition.
Consequently, the District filed an amended privilege log, which
revealed that a total of 103 documents had been attached to the confidential
summary report. The log provided a detailed description of items 1 to 78. It
asserted that each of the documents was independently “non-responsive” to
the CPRA request, and it also asserted the documents were subject to various
exemptions under the CPRA. The log identified items 79 to 103 as “Attorney
notes and summary of interview.” With respect to these documents, the log
asserted they were subject to various CPRA exemptions including the work-
product doctrine and the attorney-client privilege exemptions.
The trial court’s second order directed the District to “augment” the
privilege log and identify each of the witnesses that had been interviewed.
The District complied with the order and filed a third privilege log with the
interviewee’s names.
The trial court’s third order directed the District to produce 61 of the
103 documents that had been attached to the Confidential Summary Report.
The District then filed this petition, seeking an immediate stay and to set
aside and vacate the order.
III.
I agree with my colleagues that the trial court erred in its first order
requiring the District to create an amended privilege log. (Maj. opn., at pp. 2,
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13.) The court should not have ordered the identity of the attachments to the
Confidential Summary Report to be disclosed because the list of documents
that were selected by the District’s attorney as being important to the
investigation was privileged information.
It was privileged because “the attorney-client privilege covers the
identity of documents transmitted from an attorney to a client even if the
transmitted documents are available to the public. [I]t is the actual fact of
the transmission which merits protection, since discovery of the transmission
of specific public documents might very well reveal the transmitter’s
strategy.” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 600; accord In re
Navarro (1979) 93 Cal.App.3d 325, 327–331 [attorney-client confidentiality
“includes the identification of the document transmitted”].)
The identity of the documents selected by the District’s attorney as
important to the case was also privileged as non-qualified attorney work
product. (See generally Coito v. Superior Court (2012) 54 Cal.4th 480, 494–
497, 500–502 [discussing the definition of attorney work product under
California law and holding that “disclosing a list of witnesses from whom an
attorney has taken recorded statements may, in some instances, reveal the
attorney’s impression of the case”].)
IV.
Thus, the trial court’s first order requiring the District to create an
amended privilege log improperly coerced the disclosure of privileged
information. When a court erroneously orders the disclosure of privileged
information, and the disclosure is later determined to have been error, the
disclosed information is inadmissible in that proceeding. (Evid. Code, § 919.)
The court’s third order directing the disclosure of some of the documents that
were identified by the District as having been attached to the Confidential
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Summary Report is therefore invalid because it relied on inadmissible,
privileged information. I would vacate the trial court’s third order solely on
this basis.2
DO, Acting P. J.
2 This court’s prior order summarily denying the District’s first writ
petition challenging the trial court’s order that it produce the amended
privilege log does not have law of the case effect. (Kowis v. Howard (1992)
3 Cal.4th 888, 891 [law of the case doctrine applies only where the denial is
accompanied by a written opinion following the issuance of an alternative
writ or order to show cause].)
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